Vindication in Tort Law

This assignment delves into the concept of 'vindication' within the framework of tort law. It examines the relationship between vindication and various legal concepts such as rights, interests, and damages. The assignment encourages a critical analysis of how vindication plays a role in shaping legal outcomes and achieving justice in cases involving torts.

Law of Torts

Table of Contents
1. LEGAL ISSUES..........................................................................................................................1
2. LAW............................................................................................................................................1
3. APPLICATION...........................................................................................................................3
CONCLUSION................................................................................................................................5
REFERENCES................................................................................................................................6

1. LEGAL ISSUES
Following legal issues can be established after taking into consideration the facts and
circumstances of the given case scenario :
 Whether Janelle would be liable for her negligence actions and what points are required
to be proved by Peter for being successful in his suit ?
 Whether Sully liable for the injuries caused to James and what are the defences available
with her ?
2. LAW
English tort law is the law established to govern the implicit civil responsibilities that one
individual owes to the other. Tort can be determined as civil wrong done by one party which
caused injury, damage or loss to the other party1 . Tort is an intrusion into the health, safety,
privacy and profits of another person. Law of tort seeks to provide remedies to the bonafide
parties who have suffered loss or damage due to wrongful or negligent actions of others. It
encompasses wide range of rights, remedies and obligations that are applied by courts in case of
civil proceedings. The tortfeasor i.e. the person whose wrongful actions caused injury would be
held liable under tort law even if acted unintentionally i.e. due to negligence.
Tort of negligence was first established in the case of Donoghue v Stevenson, 1932,
which held that the party would be liable if he acted negligently and caused harm to other where
any other person of ordinary prudence have taken reasonable care in the same situation.
Following points are required to be proved by the claimant to be successful in a claim of
negligence :
 Duty of care : The claimant needs to prove that the defendant owes a legal duty of care
towards him2. According to the case of Caparo Industries plc v Dickman, 1990, a three
stage test is required to perform whether a duty of care exists or not :
(a) There exists a relationship of proximity between the parties.
1 Moore, M. S., 2010. Placing blame: A theory of the criminal law. Oxford University Press,
USA.
2 Laposata, E., Barnes, R. and Glantz, S., 2012. Tobacco Industry Influence on the American
Law Institute’s Restatements of Torts and Implications for Its Conflict of Interest
Policies. Iowa law review. 98(1). p.1.
1

(b) Injury or harm caused to the claimant caused due to conduct of defendant must be reasonably
foreseeable as held in the case of Topp v London Country Bus, 1993.
(c) It must be fair, just and reasonable to impose the liability. Breach of duty of care : It is essential for the occurrence of tort of negligence that the
legal duty imposed has been breached by the defendant. According to Vaughan v
Menlove, 1837 case, the court would use reasonable man test or objective test i.e. whether
the defendant have acted in the same manner as a person of ordinary prudence have acted
in the similar situation and followed such standard of care3. The main focus is to ascertain
whether the party has taken reasonable and standard care that any other person would
have taken in the like circumstances. If the defendant failed to meet such standard of
care, then, he can be held liable for breach of duty of care. Causation : Once it is established that there was a breach of duty of care, it is imperative
to prove that such breach has caused loss, damage or injury to the claimant whether
directly or indirectly as held in the case of Barnett v Chelsea & Kensington Hospital,
1969. The claimant needs to prove that he would not have suffered injury or loss, if it had
not been the actions of defendant.
 Damage to the claimant : Claimant must have suffered some form of loss, injury or
damage which includes physical or mental injuries, damage to property or financial loss.
The defendant would be held liable only when claimant has suffered actual loss or harm
as a result of his actions or conduct4. The onus to prove that there was a breach of duty of
care and this caused damages which are not too remote lies on the claimant.
The law of tort provides two key remedies to the party :
 Damages : It was held in the case of British Transport Commission v Gourley [1956]
that financial compensation can be provided to claimant for his loss. The damages can be
sub divided into different types :
I) Nominal : nominal damages are paid when the tort is being committed but the victim has not
suffered any loss.
3 Goldberg, J.C., 2012. Introduction: Pragmatism and private law. Harvard Law Review.
125(7). pp.1640-1663.
4 Deakin, S. F., Johnston, A. and Markesinis, B., 2012. Markesinis and Deakin's tort law.
Oxford University Press.
2

II) Contemptuous : very small amount is required to be paid in case where the claimant has been
successful but the court considers that the case was without merit and should not have been
bought.
III) General : these damages are awarded when there is no economic loss but to compensate
emotional distress and suffering or pain.
IV) Special : to get entitled for special damages, claimant needs to prove that actual loss or
damage is suffered5. For example – medical expenses, damage to property.
V) Aggravated damages : such damages are awarded when the court opines that the tort was
committed maliciously and caused harm to the reputation or character of the claimant.
VI) Exemplary or punitive damages : This damages are awarded in serious cases where court
deems that such cases are required to be set as an example.
 Injunctions : In certain cases, if the court deems appropriate injunction can be applied.
As per the case of Kennaway v Thompson, 1981, injunction can be determined as the
order of court which either prohibits or requires that a certain course of action to be
conducted.
Tort law provides for defences to the defendant on which they can grant plea in the court of law :
 Contributory negligence : Contributory negligence is a partial defence where the loss or
damage incurred is apportioned between the parties. It was held in the case of Revill v
Newbery, 1996 that the claimant is also held responsible for the carelessness and
therefore, contributed to the loss or damage suffered by him6. Both the parties would be
held liable for their part of action and the amount of loss or damages will be distributed
among them. In case of contributory negligence, defendant is required to prove that
proper care was not taken by the claimant in the circumstances for his own safety and
such failure was contributory cause for the injuries suffered.
 Volenti non fit injuria : It is a latin phrase which means consent. It states that claimant
cannot complain about the tort when he acted voluntarily after assuming the risk involved
in the action. It is must to prove that he had full knowledge of the extent and nature of
5 Varuhas, J. N., 2014. The concept of ‘vindication’in the law of torts: Rights, interests and
damages. Oxford Journal of Legal Studies. 34(2). pp.253-293.
6 Winfield, P. H., 2013. The Province of the Law of Tort. Cambridge University Press.
3

risk involved in the action which he conducted voluntarily7. There are three requirements
of this defence – voluntary agreement as held in the case of Nettleship v Weston, 1971
which is made in full knowledge of the extent and nature of risk involved.
3. APPLICATION
According to the rule laid down in the case of Donoghue v Stevenson, 1932, a person
would be held liable for the negligent actions when he fails to exercise reasonable care and that
caused damage or injury to other party. In the given scenario, Janelle was going to a birthday
party in Brian Bay from Farmidale in her car which she was driving. She was very excited about
the party. Due to her reckless and careless driving she collided with the Peter's car. As a result,
he suffered severe injuries that led to amputation of his legs8. This developed extreme anxiety,
depression and agarophobia i.e. fear of public spaces and thus, he is no longer to continue his
profession and unable to find alternative employment. Thus, it is a case of tort of negligence
where the action of Janelle caused severe physical and mental injuries and economic loss to
Peter. All the elements of tort of negligence are present in the given case :
 Duty of care : Peter can prove that Janelle has a legal duty of care as she is required to
take reasonable care while driving and follow the traffic rules. Therefore, Janelle owed a
duty of care to Peter. As per the case of Topp v London Country Bus, 1993, the injury
caused to Peter was reasonably foreseeable and thus, it is just and fair to impose duty on
Janelle.
 Breach of duty of care : After establishing that Janelle owed a duty of care, Peter is
required to prove that there was a breach of duty of care. According to Vaughan v
Menlove, 1837 case, the court would use reasonable man test or objective test i.e. whether
the defendant have acted in the same manner as a person of ordinary prudence have acted
in the similar situation and followed such standard of care9. Thus, in the given case it can
7 The Law of Tort. 2014. [Online]. Available through: <http://www.inbrief.co.uk/claim-
preparations/the-law-of-tort/>. [Accessed on 28th March 2017].
8 Hart, H. L. A., Raz, J., and Green, L., 2012. The concept of law. Oxford University Press.
9 Scanlon, T. M., 2011. Punishment and the Rule of Law. Why Punish? How Much?: A
Reader on Punishment. p.161.
4

be seen that Janelle has not acted in a reasonable manner and hence, there is a breach of
duty.
 Causation : It was held in the case of Barnett v Chelsea & Kensington Hospital, 1969 that
the breach of duty of care has caused injury, damage or loss to the party. Peter needs to
prove that he would not have suffered injury or loss, if it had not been the actions of
Janelle.
 Damage to the claimant : In the present case, the accident caused severe injuries to Peter
– it led to amputation of his legs, caused extreme depression, agarophobia and anxiety.
Moreover, he was unable to continue his profession as a standing comedian and cannot
find alternative job10. Thus, he suffered actual and severe injury and damage as a result of
accident caused by Janelle.
Thus, Janelle would be held liable to pay compensation to Peter for causing physical, emotional
and economic loss to him.
In this case, Sully arranged a pool party for his son Trevor at her house. There was
alcohol at the party and one of Trevor's friend named James drank too much and dived into the
pool which caused him severe injuries that he is chained to wheelchair for the rest of his life. As
the injury caused to James was due to negligence of Sully who was the host of the party as well
as due to his own carelessness so in the given case, contributory negligence is applicable. James
dived into the pool as he was not aware of the depth of the pool and there was no notice
mentioning the same, therefore, Sully can be held responsible for this negligence11. Also, James
had several alcoholic drinks before diving, therefore, he himself was liable as per the case of
Revill v Newbery, 1996. Thus, in the given case, Sully can use contributory negligence as a
partial defence as she was responsible for not providing notice and taking reasonable care of her
guests and James is liable for his own injuries as he dived into the pool after he was drunk.
Emma, Trevor's younger sister was also injured in his birthday party as she slipped and
lacerated her leg on one of the broken beer bottles that were lying around the pool area. The law
10 Gifford, D. G., 2010. Climate Change and the Public Law Model of Torts: Reinvigorating
Judicial Restraint Doctrines. SCL Rev. 62. p.201.
11 Ronglin, G. A. O., 2010. Explore the Balance between the Interests of the Law of Torts
[J]. Journal of East China University of Science and Technology (Social Science Edition).
4. p.014.
5

of tort is not applicable in the given case as it is a family matter where mother failed to take
reasonable care of her daughter.
CONCLUSION
It can be concluded on the grounds of laid down principles of Tort law and facts of the
case that Janelle would be liable for compensation to Peter as injury was caused due to her
negligence. She owed a duty of care which she breached and this caused severe physical, mental
and economic injury and loss to Peter. In the other case, Sully would be partly liable as per the
principle of contributory negligence where if the injury is caused due to negligent actions of both
the parties, then, loss is apportioned between them. Therefore, Sully can use the defence of
contributory negligence as the injury caused to James was due to carelessness of Sully as well as
James himself. In the last case, Sully failed to take reasonable care of her daughter, Emma.
6

REFERENCES
Books and Journals
Deakin, S. F., Johnston, A. and Markesinis, B., 2012. Markesinis and Deakin's tort law. Oxford
University Press.
Gifford, D. G., 2010. Climate Change and the Public Law Model of Torts: Reinvigorating
Judicial Restraint Doctrines. SCL Rev. 62. p.201.
Goldberg, J.C., 2012. Introduction: Pragmatism and private law. Harvard Law Review. 125(7).
pp.1640-1663.
Hart, H. L. A., Raz, J., and Green, L., 2012. The concept of law. Oxford University Press.
Laposata, E., Barnes, R. and Glantz, S., 2012. Tobacco Industry Influence on the American Law
Institute’s Restatements of Torts and Implications for Its Conflict of Interest Policies. Iowa
law review. 98(1). p.1.
Moore, M. S., 2010. Placing blame: A theory of the criminal law. Oxford University Press,
USA.
Ronglin, G. A. O., 2010. Explore the Balance between the Interests of the Law of Torts
[J]. Journal of East China University of Science and Technology (Social Science Edition).
4. p.014.
Scanlon, T. M., 2011. Punishment and the Rule of Law. Why Punish? How Much?: A Reader on
Punishment. p.161.
Varuhas, J. N., 2014. The concept of ‘vindication’in the law of torts: Rights, interests and
damages. Oxford Journal of Legal Studies. 34(2). pp.253-293.
Winfield, P. H., 2013. The Province of the Law of Tort. Cambridge University Press.
Online
The Law of Tort. 2014. [Online]. Available through: <http://www.inbrief.co.uk/claim-
preparations/the-law-of-tort/>. [Accessed on 28th March 2017].
7